Simon's Legal Resources

Evidence - Post-Offence Conduct (4)

. R. v. Konashewych

In R. v. Konashewych (Ont CA, 2026) the Ontario Court of Appeal dismissed two criminal appeals, these brought against convictions against both defendants for fraud, and one for "breach of trust by a public officer" under CCC s.122.

Here the court considers 'after-the-fact conduct' evidence:

[77] After-the-fact conduct evidence, like any evidence, is “admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on her exposition of these legal principles). Where this type of evidence is not relevant to a live issue, “it must be excluded or the jury should be instructed that [it has] no probative value”: Calnen, at para. 109. Evidence of after-the-fact conduct may ground a range of reasonable inferences, some pointing to culpability and others pointing to lesser culpability or even innocence; it is for the trier of fact to choose “which inferences they accept and the weight they ascribe to them”: Calnen, at para. 112. Lastly, trial judges should expressly state to the jury the potential inferences arising from the after-the-fact conduct evidence and explain the chain of reasoning that supports those inferences: Calnen, at para. 113. A specific caution about this type of evidence should be provided when judicial experience suggests the jury may assign more weight to it than it warrants: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 60.